The modern concept of human rights emerged in the eighteenth century as part of the European Enlightenment, expressed most vividly in the Declaration of the Rights of Man, but the modern concept of an individual right derives from John Locke’s arguments against the divine right of kings in his Treatise on Government, where he wrote that “every Man has a Property in his own Person. This no Body but himself has any Right to but himself. The Labour of his Body, and the work of his Hands, we may say, are properly his.” These ideas were developed by the natural law philosophers of the eighteenth century, who introduced the principles that individuals had inherent natural rights by virtue of their birth as human beings; that these rights were universal, in that they applied to all people, no matter what societies and cultures they were born into; and that depriving a person of these rights was a violation of the ethical - and to many writers, the divine - order. One such thinker was Francis Hutcheson, a liberal Christian thinker and significant influence on other eighteenth century philosophers, such as Adam Smith and David Hume, on which account he is often referred to as the "father of the Scottish Enlightenment". In his Short Introduction to Moral Philosophy (1747) he listed a number of natural rights. The first and second of these were "1. A right to life, and to retain their bodies unmaimed. 2. A right to preserve their chastity." A fourth right was "A right of liberty, or of acting according to one's own judgement and inclination within the bounds of the law of nature." [1]
From these ideas arose the principle that a person's body was inviolable, that any touching without consent constituted assault, and hence the contention by the great English jurist William Blackstone that every man’s person was sacred and Justice Brennan’s reference to this principle (in his judgement in Marion's case) in affirming that “each person has a unique dignity which the law respects and which it will protect.” [2] The key points about human rights are that they pertain to individuals, not to groups or collectivities, and that their purpose is to protect the dignity of the individual and the integrity of his or her body and personhood.
Thus, to take one example, the Australian Capital Territory Human Rights Act (2004) states that "Human rights are necessary for individuals to live lives of dignity and value" and that "Human rights are set out in this Act so that individuals know what their rights are". One purpose of the act is to "encourage individuals to see themselves, and each other, as the holders of rights, and as responsible for holding the human rights of others." (Preamble)
Part 2 (6) of the Act states clearly "Only individuals have human rights." Section 10, "Protection from torture and cruel, inhuman or degrading
treatment" states (Para. 2) that "No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent." Section 11 (2) states that "Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind".
It is thus clear that Australian law recognises that human rights apply to individuals (not to societies or cultures or belief systems); that every individual has the same human rights; that children, without regard to the culture into which they happened to be born (i.e. the culture of their parents), are entitled by law to have their human rights protected and defended; and that experimental medical therapies may not be imposed on individuals without their free (meaning fully informed) consent.
An important implication of this perspective is that a right is an assertion against power, something conferred by law or custom that those without power can deploy in their defence against those that do have power. In the relations between children and adults, it is the children who are powerless and the adults who hold the power, and it follows that the children are the party in need of the rights. It makes no sense to say that parents have the right to circumcise their children because parents already have vast power over them and can, in practice, do anything they like to them. Law, custom and (in recent times) human rights instruments attempt to even up this disparity in power by setting limits on what parents may do to their children.
Several of these instruments make direct or implied reference to circumcision.
Composed in the shadow of the Second World War, the Universal Declaration of Human Rights has nothing direct or indirect to say about genital or other bodily mutilations, but it is interesting to recall that the initial seed idea for a declaration of rights emerged from attempts by the Engish writer H.G. Wells to formulate some war aims in 1939, and that his first draft included a prohibition on bodily mutilation. The draft was included in a letter to the Times, Article 9 of which included the following words: “That no man shall be subjected to any sort of mutilation or sterilization except with his own deliberate consent, freely given, nor to bodily assault, except in restraint of his own violence, nor to torture, beating or any other bodily punishment.” [3]
No statement as explicit as this was included in the declaration that emerged after the war, but some authorities have seen an implied criticism of mutilations in its provisions on self-determination, physical and moral integrity, and protection of children. [4] While most of the provisions of the UDHR relate to civil rights and assume (with the example of Nazi Germany in mind) that the principal enemy of human rights will be the state, it does include provisions that recognise individual rights as inherent, universal and unalienable, and that they may be threatened by other individuals and non-state entities. To take these one by one:
These provisions make clear that rights are not culture or gender-specific, nor generated by laws or custom, but pertain to all human beings everywhere by virtue of their humanity, irrespective of gender or the culture into which they happened to be born. Boys and girls therefore have the same rights.
* Johannes Morsink, Inherent Human Rights: Philosophical Roots of the Universal Declaration (University of Pennsylvania Press, 2009)
Full text of Universal Declaration of Human Rights
This contains two provisions relevant to circumcision, including one that has been interpreted as a specific prohibition of genital mutilation.
Article 19 (1): States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
Article 24 (3): States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
It is hard to know what Article 24 (3) could refer to unless it was genital mutilation of children, and it has generally been interpreted as having this intent. The algebraic quality of the phrase has, however, allowed the emergence of interpretations that restrict the application of the article to women only. The reasons why the wording of the Convention on the Rights of the Child was so vague may be guessed, but that it was originally intended to refer to both male and female genital cutting was made clear in some of the subsequent consultations, such as in Lesotho, where a local committee reported:
Culture is a component of education. Cultural activities like circumcision are not to be a hindrance to a child’s right to education. It is proposed that proper medication be administered at circumcision schools. Children should be allowed to decide at 21 years of age whether or not they want to be circumcised. [5]
The reference here is to children’s right to decide, meaning both boys and girls. In Guinea-Bissau another report made clear that “traditional practices” were those affecting all children, not just girls:
The report states that traditional practices and customs are causing serious problems for children and women. The circumcision of boys aged 9 to 13 years and female genital mutilation in girls aged between 7 and 12 years among the Fula and Mandinga ethnic groups are the most cruel and harmful practices. There are no effective measures at the national level to eliminate them. [6]
Despite the reference to children, however, the rest of the report forgot about boys and went on to talk about the need for campaigns against female genital mutilation, and made no further mention of circumcision of males. This tendency for “traditional practices prejudicial to … children” to be increasingly interpreted as applying to girls only was deplored in a report to the United Nations by the National Organization of Circumcision Information Resource Centers, which pointed out:
That international humanitarian law, insofar as it provides protection against rape and other sexual assaults, is applicable to men as well as women is beyond any doubt as the international human right not to be discriminated against (in this case on the basis of sex) does not allow derogation. Males may not be discriminated against in the application of human rights principles. United Nations experts have acknowledged that at least under certain circumstances male circumcision constitutes a human rights violation. [7]
The reference in the last sentence is to a UN report on the civil war in Yugoslavia, which states that as well as women suffering rape and other forms of sexual violence, “Men are also subject to sexual assault. … They have also been subjected to castration, circumcision or other sexual mutilation.” [8]
The American Convention on Human Rights is an international human rights agreement adopted by the countries of the Americas in 1969. It came into force in 1978 after ratification by all the countries of Central and South America, with the exception of a couple in the Caribbean. The United States was an original signatory to the treaty, but did not proceed with ratification.
Two provisions of the treaty embody an implied or explicit guarantee of physical integrity.
Article 4, Para 1: Every person has the right to have his life respected This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
Article 5, Para 1: Every person has the right to have his physical, mental, and moral integrity respected.
Article 4 (1) has generally been interpreted as directed against abortion, which is the reason Canada decided not to adopt the treaty. Nonetheless, with its reference to respect for a person’s life, the provision could easily be interpreted as condemning any form of bodily mutilation, if the will and interest were there.
Article 5 (1) is an explicit guarantee of physical integrity, and as such represents a clear prohibition of any bodily mutilation, including circumcision.
Further details and full text of convention
The African Charter on Human and Peoples’ Rights (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent. It emerged under the aegis of the Organisation of African Unity (since replaced by the African Union) which, at its 1979 Assembly of Heads of State and Government, adopted a resolution calling for the creation of a committee of experts to draft a continent-wide human rights instrument, similar to those that already existed in Europe (European Convention on Human Rights) and the Americas (American Convention on Human Rights). This committee was duly set up, and it produced a draft that was unanimously approved by the OAU in 1981.
Part I (Rights and duties), Chapter 1 (Human and people’s rights) contain several articles which would appear to protect individuals from unwanted violations of their bodily integrity, such as circumcision.
Article 2: Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.
Article 4: Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
Article 5: Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
Article 6: Every individual shall have the right to liberty and to the security of his person.
On the face of it, these articles represent the most explicit protection of individual bodily integrity to be found in any human rights instrument. Article 4 is especially direct, stating clearly that “Human beings are inviolable” and that "Every human being shall be entitled to respect for his life and the integrity of his person.” If this does not mean that he or she is protected from physical assaults such as circumcision, it is hard to see what could.
It is significant that all these articles refer to individuals and stress that “every individual” has these rights as autonomous human beings. There is nothing here to suggest that an individual may be subject to the authority of religious or tribal elders, or that these rights may be exercised only as subject to traditional religious or tribal law and custom. The charter recognises only individuals and, on the face of it, asserts their rights as individuals against any collective entity or group claim.
The whole point about rights is that they are an assertion against power and are meaningful only insofar as those without power can deploy them against those who do have the power – for example, wives against husbands, students against teachers, children against parents etc. To recognise individual rights is to accept that it is not only the state that may be a source of injustice. Presumably, the term “every individual” means males as well as females, children as well as adults, and boys as well as girls.
Considering the extent of political violence in both Africa and South America, and the appalling incidence of forced circumcision in many African countries, it is sadly obvious that many of these treaties are not taken very seriously by the governments that have so optimistically put their signatures to them.
Further information about charter
There are several further international conventions in the bioethics field that explicitly give children protection against unwanted or unnecessary medical and quasi medical-procedures. These are the Council of Europe’s Convention on Human Rights and Biomedicine 1997, and the UNESCO Universal Declaration on Bioethics and Human Rights 2005.
Chapter II (Consent), Article 5, states as a general rule that "An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time."
Article 6, Protection of persons not able to consent, states that “an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.” [9]
Here the term “person” clearly refers to both males and females, both adults and children, and requires fully informed consent for any medical intervention. The provision amounts to an acknowledgement that people of any age or sex have the right to refuse unwanted medical or surgical interventions and to be protected from interventions they do not understand.
This includes a number of clauses that appear to protect individuals from unwanted medical interventions. These are quoted in full:
Article 3 – Human dignity and human rights
1. Human dignity, human rights and fundamental freedoms are to be fully respected.
2. The interests and welfare of the individual should have priority over the sole interest of science or society.
Article 6 – Consent
1. Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.
Article 7 – Persons without the capacity to consent
In accordance with domestic law, special protection is to be given to persons who do not have the capacity to consent.
Article 8 – Respect for human vulnerability and personal integrity
In applying and advancing scientific knowledge, medical practice and associated technologies, human vulnerability should be taken into account. Individuals and groups of special vulnerability should be protected and the personal integrity of such individuals respected. [10]
It is readily apparent that circumcision of a non-consenting minor, unless essential to correct a deformity, malfunction, injury or disease that has not responded to conservative treatment after a fair trial, would breach every one of these provisions. In Article 3 (2), “interest” should be interpreted in a wide sense as including all the individual’s interests apart from “welfare”. These might include self-esteem, body image, aesthetic preferences, cultural allegiances, erotic practices and self-identification, all of which might be seriously affected by the presence or absence of the foreskin. Article 8 gives special protection to the personal integrity of those unable to protect themselves, that is, to infants and children.
These treaties and conventions do not have the force of law in Australia, but they nonetheless represent an aspirational ideal to which the Australian community has declared its commitment. It is quite possible for a practice to be unethical and wrong but still legal, or at least tolerated by the law; but the aim should be to reform the law to bring it into closer alignment with what is ethically desirable. It becomes embarrassing if human rights and law drift too far apart.